Judgment:
ORDER
K.T. Sankaran, J.
1. Accused Nos. 13 (Prasanth Kumar) and 14 (Ismail) in Crime No. 31 of 2008 of Thrikkakkara Police Station have filed B.A. Nos. 3192 of 2009 and 3069 of 2009 respectively, under Section 439 of the Code of Criminal Procedure seeking bail. They are in judicial custody since 14-12-2008 and 17-1-2009 respectively.
2. The offences alleged against the accused persons in the case are under Sections 143, 147, 148, 307, 324, 307 and 120-B read with Section 149 of the Indian Penal Code and Sections 3 and 4 of the Explosive Substances Act.
3. According to the prosecution, Accused Nos. 1, 4, 5 and 9 are absconding and Accused Nos. 6,7 and 8 died in an encounter in Jammu, while they tried to cross the border.
4. The prosecution case is that the accused persons hatched a criminal conspiracy to assassinate Abdul Rahim alias K.M.R. Guru, who was running a Spiritual Palace at Pookkadasseri. It is alleged that a section of the Muslims believe that the ideologies of K.M.R. Guru and his activities are against Islam. On earlier occasions, unsuccessful attempts were made to assassinate K.M.R. Guru. It is alleged that the accused persons hatched the conspiracy at various mosques. One of the accused persons (Abdul Rahim), impersonating himself as Abdulla, succeeded in getting access to the Spiritual Palace run by the Guru and became Guru's disciple. Guru was made to believe by Abdul Rahim that he would arrange persons for purchasing the scrap electrical goods worth Rs. One crore belonging to the former and that he had contacts with dealers of scrap at Bangalore and Hyderabad. In furtherance to the conspiracy, the accused persons invited Guru to a place near Infopark at Kakkanad. Deadly weapons like swords, axe and explosives were collected by the accused. Vehicles were also arranged. K.M.R. Guru was informed over mobile phone to reach at the place near Godrej Company, near Infopark. K.M.R. Guru and his associates came to the place in a Scoda car. The 5th accused, riding on a motor bike, led Guru to the place. Guru and his associates were led to the compound of a building under construction. Accused No. 4 shook hands with Guru. At that time, 2nd accused attacked Guru with an axe. One of his disciples was also injured due to the attack with the axe. Guru and his disciples attempted to escape. The other accused persons came out of the vehicle and wrongfully restrained Guru, pushed him to the ground and inflicted deadly wound on his neck with the axe. Some other accused hurled bombs at Guru and his associates. Under the belief that Guru was dead, the assailants escaped from the scene.
5. Bail Applications filed by the petitioners and another accused were dismissed by this Court as per the common order dated 24-3-2009 in B.A. Nos. 539, 1142 and 1209 of 2009. In that order, it was also noticed that final report was filed in the case. In the order dated 24-3-2009, it was held (by Justice V. Ramkumar) thus:
The investigation files, prima facie reveal the handy work of a terrorist out fit of which the accused persons are important links. Terrorism in the most horrendous form is showing its ugly face in various parts of our nation vitally threatening the stability of the country. I am not inclined to grant bail to any of the petitioners before the outcome of the trial. These petitions are accordingly dismissed.
(emphasis supplied).
6. The petitioners again filed Bail Application Nos. 2211 of 2009 and 2617 of 2009 before the High Court. The petitioners contended that 90 days elapsed from the date of their arrest, but no charge was laid. They contended that their further detention was hit by the proviso to Section 167(2) of the Code of Criminal Procedure. The Bail applications were disposed of directing the learned Magistrate to consider the question whether the charge was laid within time and to dispose of the bail applications filed by the petitioners.
7. The learned Magistrate, in the Order dated 27th May 2009, held that the charge sheet was filed within 90 days. Accordingly, the contention raised by the petitioners that they were entitled to default bail under the proviso to Section 167 (2) was rejected.
8. Sri. T.G. Rajendran, learned Counsel appearing for the petitioner in B.A. No. 3192, submitted that charge was laid in the case on 9-3-2009 but it was returned as defective on 11-3-2009. The charge sheet was re-presented on 19-3-2009 and by that time, 90 days from the date of arrest expired on 14-3-2009. The counsel contended that 'piece-meal' filing of charge sheets would not take away the rigour of the proviso to Section 167 (2) Cr.P.C. He relied on the decision of the Supreme Court in Bhupinder Singh and Ors. v. Jarnail Singh and Anr. : JT 2006 (6) SC 619 : 2006 Cri LJ 3621 and of the Kerala High Court in Furtado v. C.B.I. : 1996 (2) KLT 1 : 1996 Cri LJ 3042.
9. The learned Director General of Prosecutions submitted that the charge was laid within time and that re-presentation of the same after curing minor defects on a subsequent date would not entitle the petitioner to claim default bail. He relied on the Constitution Bench decision in Sanjay Dutt v. State through C.B.I., Bombay : (1994) 5 SCC 410 : 1995 Cri LJ 476.
10. One of the questions of law considered by the Constitution Bench in Sajay Dutt's case : : (1994) 5 SCC 410 : 1995 Cri LJ 476 was regarding 'the proper construction of Clause (bb) of Sub-section (4) of Section 20 of the TADA Act indicating the nature of right of an accused to be released on bail thereunder, on the default to complete investigation within the time allowed therein'. Paragraph 5 of the judgment indicates the purpose for reference to the Constitution Bench. It reads thus:
The decision of the Constitution Bench in Kartar Singh v. State of Punjab : (1994) 3 SCC 569 : 1994 Cri LJ 3139, it is urged does not fully answer these questions. It is also urged that the principle enunciated by a Division Bench in Hitendra Vishnu Thakur v. State of Maharashtra : (1994) 4 SCC 602 : 1995 Cri LJ 517 read in the context of the final order made therein, raises some ambiguity about the true meaning and effect of Section 20(4)(bb) of the TADA Act which requires that controversy also to be settled.
11. In Hitendra Vishnu Thakur's case : (1994) 4 SCC 602 : 1995 Cri LJ 517, it was held:
If the period prescribed by Clause (b) of Section 20(4) has expired and the court does not grant an extension on the report of the public prosecutor made under Clause (bb), the court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the court grants an extension under Clause (bb) but the charge sheet is not filed within the extended period, the court shall have no option but to release the accused on bail, if he seeks it and is prepared to furnish the bail as directed by the court.
12. In Sanjay Dutt's case 1995 Cri LJ 476 the learned Additional Solicitor General submitted that a clarification is necessary in respect of the dictum laid down in Hitendra Vishnu Thakur's case : 1995 Cri LJ 517. To quote the said contention:
However, the grievance of the learned Additional Solicitor General is that the direction for grant of bail by the Division Bench in Hitendra Vishnu Thakur, on the facts of that case, is not in consonance with such reading of that decision and indicates that the indefeasible right of the accused to be released on bail on expiry of the time allowed for completing the investigation survives and is enforceable even after the challan has been filed, without reference to the merits of the case or the material produced in court with the challan. He further submitted that it should be clarified that the direction to grant bail under this provision on this ground alone in Hitendra Vishnu Thakur after the challan had been filed was incorrect. Such a clarification, he urged, is necessary because the decision in Hitendra Vishnu Thakur is being construed by the Designated Courts to mean that the right of the accused to be released on bail in such a situation is indefeasible in the sense that it survives and remains enforceable, without reference to the facts of the case, even after the challan has been filed and the court has no jurisdiction to deny the bail to the accused at any time if there has been a default in completing the investigation within the time allowed.
13. Answering the question, the Constitution Bench in Sajay Dutt's case 1995 Cri LJ 476 held thus:
We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4) (bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply....If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab : AIR 1952 SC 106; Ram Narayan Singh v. State of Delhi : AIR 1953 S.C. 277; and A.K. Gopalan v. Government of India : AIR 1966 SC 816)
14. In Bhupinder Singh's case : JT 2006 (6) SC 619 : 2006 Cri LJ 3621, the contention raised was that though the challan was filed, it was incomplete as the requisite documents did not accompany the same and thus the proviso to Section 167(2) was attracted. The facts relating to this contention was discussed in paragraphs 17 and 18, which read thus:
17. In the instant case undisputedly the challan was filed on 30-10-2004 and the trial court passed an order to the effect that the Ahlmad was to check and report. The Ahlmad examined the challan and noted as follows: 'Challan checked and found that negatives of the three photographs are not attached with.
18. The negatives were filed on 1-11-2004 and it was indicated that 'Challan checked, found correct.
15. The Supreme Court rejected the contention of the accused, holding thus:
20. Stand of learned Counsel for the appellant was that the mere filing of the defective challan was really of no consequence. This aspect has been dealt with in Tara Singh's and Satya Narin's cases (Tara Singh v. The State : JT 1988 (3) SC 729 : (1989) 1 SCC 235 : 1989 Cri LJ 297 and Satya Narain Musadi and Ors. v. State of Bihar : AIR 1980 SC 506) in detail. Since all the relevant documents were before the court before expiry of 90 days period, grievance of the appellant is sans merit.
16. In Furtado v. C.B.I. : 1996 (2) KLT 1 : 1996 Cri LJ 3042, the offences alleged were under the Foreigners Act, Territorial Water Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, Official Secrets Act and the Indian Penal Code. The Investigating Officer filed a 'charge report' in respect of some of the offences and the investigation continued in respect of the other offences. In that context, it was held thus:
The investigation under Section 167 of the Code can be one involving one or more offences against the accused persons. The investigation of a case cannot be split up in such a way to file piece-meal reports before Court. Section 173 of the Code does not stipulate a piece-meal investigation and filing of incomplete charge sheet before Court. It contemplates filing of a charge/refer report after completion of the entire investigation of the case in respect of all offences and where several offences are involved in a case, a charge report could be laid before court only after the investigation is over and formation of an opinion regarding all the offences alleged against the accused.
17.I am of the view that the decisions in Bhupinder Singh's case 2006 Cri LJ 3621 and Furtado's case : 1996 Cri LJ 3042 would not be helpful to the petitioner. In the present case, according to the petitioner, the charge sheet was returned as defective for want of postmortem certificate in respect of Accused Nos. 6,7 and 8 and list of documents and on a query regarding the address of the 4th accused. The charge sheet was represented within time. Cognizance was taken on 20-3-2009. In Central Bureau of Investigation v. R.S. Pai and Anr. : (2002) 5 SCC 82 : 2002 Cri LJ 2029, it was held that if a mistake is committed in not producing the relevant documents at the time of submitting the report or the charge- sheet, it is always open to the investigating officer to produce the same with the permission of the court. In the case on hand, the charge sheet was returned as defective. It implies permission to cure the defects. The defects were cured and the charge sheet was re-presented. It cannot be said that the proviso to Section 167(2) Cr.P.C. would get attracted enabling the accused to get default bail if the charge sheet is re-presented, after curing the defects, beyond the period mentioned in the said proviso, when the charge sheet was originally filed within time.
18. Even when the order dated 24-3-2009 was passed by this Court, it was mentioned therein that the final report in the case was filed. The learned Magistrate, in the present order dated 27th May 2009 has stated that the charge sheet was filed within 90 days. Even if were to be held, accepting the contention of the petitioner, that the charge sheet could not be said to be filed within 90 days as it was re-presented after 90 days, I do not think that the petitioner is entitled to invoke the proviso to Section 167(2) Cr.P.C. at this stage since the charge sheet has already been filed and as held in the Constitution Bench decision in Sanjay Dutt's case 1995 Cri LJ 476 the stage at which this contention could be raised by the accused is over.
19. Sri. S. Rajeev, the learned Counsel appearing for the petitioner in Bail Application No. 3069 of 2009 submitted that the petitioner (Accused No. 14) was present before the Court of the Judicial Magistrate of the First Class, Kannur on 10-1-2008, the date of occurrence in the present case. Affidavit of the counsel who appeared for him in that Court is also filed wherein it is stated that the petitioner was present before Kannur Court on 10-1-2008. The counsel contends that, it can therefore safely be concluded that the petitioner did not participate in the conspiracy or in the commission of the offence, as alleged by the prosecution. The learned Director General of Prosecution submitted that it is too early a stage to arrive at any conclusion on that aspect. Impersonation on behalf of the petitioner, before Kannur Court, cannot be ruled out, it is submitted. While disposing of a Bail Application, it is not desirable to arrive at a finding on contentious issues, as it would cause prejudice to either party. Detailed examination of the contentions of the parties in regard to the commission of the offence, defence of the accused, discussion on the merits of the contentions and arriving at a finding thereon, should be avoided, at the stage of considering the Bail Application. Vide: Puran v. Rambilas : A.I.R. 2001 SC 2023 : 2001 Cri LJ 2566; Kashi Nath Roy v. State of Bihar : (1996) 4 SCC 539 : 1996 Cri LJ 2469.
20. The learned Director General of Prosecution submitted that if the petitioners are released on bail at this stage, they would intimidate the witnesses and tamper with the evidence. It is submitted that Accused No. 14 is involved in other cases as well, which include the case of attempt to assassinate late E.K. Nayanar, the former Chief Minister of Kerala and the case where a Tamil Nadu Transport Corporation bus was set on fire at Kalamasseri, infuriated by the detention of Abdul Nassar Madani in jail at Coimbatore. The aforesaid submission of the learned Director General of Prosecution cannot be ruled out as irrelevant.
For the aforesaid reasons, I am of the view that the Bail Applications are liable to be dismissed. I do so.